"Assisting" Suicide: The Limits of Free Speech

JURIST Guest Columnist Gabriel Walsh, Willamette University College of Law Class of 2016, analyzes the limits and protections of free speech surrounding issues of language used to encourage or promote suicide...

On September 30, 2013, the Court of Appeals of Minnesota issued a ruling declaring unconstitutional a Minnesota statute prohibiting a person from advising, encouraging or assisting another person in the taking of the other person's life. The case was an appeal from a ruling of a lower court, and the Court of Appeals' subsequently reversed part of the lower court's decision. Although this is an unpublished opinion, I hope that other jurisdictions implore the same reasoning in evaluating the constitutionality of overly-broad statutory restrictions on speech.

The trend in recent yearssometimes in the courts and sometimes through statutory enactment and voter initiativeshas been, broadly speaking, to cede deference to the wishes of terminally ill persons with respect to their choices of whether to end their own lives. Appropriately, the court in this case did not base its reasoning on those trends but rather on the bedrock American principle of freedom of speech. The substantive issue here is not the more controversial issue of assisted suicide; it is about freedom of speech.

The court examined the broad language of the statute in question, and reasoned that the statute did not prohibit historically unprotected speech, but could be construed more broadly to prohibit constitutionally-protected speech. This is an appropriate application of the freedom of speech protection afforded to us by the first amendment. To "advise" or "encourage" a person in any manner is not necessarily a material assistance; holding a sign on a street corner that reads, for example, "keep your dignityIf you're terminally ill, there is no shame in choosing to end your own life," could easily be construed to "advise" or "encourage" a terminally ill person to take his or her own life, as long as the person had freely chosen to do so. This could be especially true if a terminally ill person read the sign, found the message convincing, and as a result actually took his or her own life. Few reasonable people would suggest that the person holding the sign should even have moral culpability in that situation, let alone be guilty of a crime. It should never be a crime to share any opinion.

When considering the well-being of society, there are some subjects which tempt us to create peculiar restrictions on speech due to the potential harm we envision from speech on that subject. American society will probably always debate where the bright line distinction between freedom of speech and protection of the public should be drawn. But such a line must only be drawn at a point where it is not so restrictive as to disallow any given opinion to be communicated. In the US, we do consider some speech to be constitutionally unprotected. For example, while pornography is generally not illegal to produce, possess, sell or share, it is (justifiably) a criminal act to involve children in the production, possession, selling or sharing of pornography. It is easy to understand the plain, consanguineous human desire to protect children from pornography, especially to protect them from being sexually exploited. Where constitutional concerns have arisen is on the issue of pornography which uses technology or theatrics to visually present persons who appear to be children engaging in sexual acts, but where in fact adult actors, or technologically-generated images that don't portray any actual person's likeness, are used.

Understandably, most people do not appreciate the existence of images that, although not actually featuring children, nonetheless appear to portray children in sexually explicit ways. However, the US Supreme Court has found such images to be constitutionally-protected speech. It seems that where a potential harm to society from a particular brand of speech is manifested merely in the impressions and ideas derived from that speech, it must be protected. If First Amendment rights to free speech are intended to protect anything, it is surely intended to protect speech which is in particular need of protection. Namely, it ultimately protects unpopular or otherwise unsavory speech. The ease with which one can understand and appreciate this concept is what makes it such a tempting cause to promote as the idea is transactional and very appealing. Yet, as we saw in the case of Minnesota lawmakers, perhaps acting under pressures from their constituents, can sometimes trample on the constitutional protection of free speech. However, even in the absence of a statute such as the one considered by the court in Minnesota, we must still consider on which side of the bright line we should place speech that advises or encourages a person to commit the illegal act of suicide, when the person follows through with that act.

The answer should be found not by evaluating the speech itself, but by evaluating the actions of the person who is producing the speech. The law should be concerned with whether a person is using mere words, or rather is assisting with or conspiring to assist with the suicide. If there is no conspiracy to assist, and if there is no actual assistance, the person who advises or encourages a terminally ill person to commit suicide should not be guilty of a crime based on her mere words.

Consider that in some European countries it is a criminal act to "deny the Holocaust." This sets a dangerous precedent because of the remoteness of that mere denial to any traditionally-criminal act; it codifies a requirement to accept historical truths. Regardless of how ill-conceived it is to deny the Holocaust, it should shock the sensibilities of all Americans to learn that, in some countries which we often consider to have cultural values that are similar to our own values, it is a criminal act to deny a historical fact. Whether it's that sign-holding American on a street corner or a Holocaust-denying European preaching anti-Semitic conspiracy theories in a pub, all people should be free to express any view and free to deny any fact.

The potential for unpopular speech to inspire intolerable acts is not a baseless concern. Speech is requisite to a conspiracy. Speech is requisite to the inciting of a riot. But speech is also germane to human civilization, and it is worth protecting; speech can raise the consciousness of a society, and start a movement. The hobgoblin of the criminal mind is not mere speech, but rather, the manifestation of speech through deplorable acts, or through conspiracies to commit such acts. My hope for western society is that we continue to protect speech, and that we focus our prohibitions on actions, not on words.

Gabriel Walsh completed his BS in business marketing at an on-ground campus of University of Phoenix. He plans on pursuing practice business law.

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